Citation Nr: 0402613
Decision Date: 01/29/04 Archive Date: 02/05/04
DOCKET NO. 03-03 492 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
nicotine dependence.
2. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for heart
disease and shortness of breath, including as due to tobacco
use in service.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran served on active duty from October 1961 to
October 1965.
This matter came before the Board of Veterans' Appeals
(Board) on appeal of a March 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon.
The veteran has perfected an appeal of that part of the March
2002 rating decision that denied service connection for the
two claims listed in the issue section. Moreover, he also
submitted a timely notice of disagreement with the March 2002
rating decision determination that there was no clear and
unmistakable error in a May 1998 rating decision that
originally denied service connection for heart disease due to
tobacco use in service and nicotine dependence. This issue
will be addressed in the REMAND portion of this decision.
That part of this appeal is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
notify you if further action is required on your part.
FINDINGS OF FACT
1. In May 1998, the RO issued a rating decision denying
service connection for heart disease and shortness of breath
due to tobacco use in service and service connection for
nicotine addiction. Notice of that decision was sent to the
veteran's most recent address of record in May 1998. He did
not appeal.
2. Evidence submitted since the May 1998 decision denying
the veteran's claims for service connection for heart disease
and shortness of breath due to tobacco use in service and
nicotine addiction contains an opinion suggesting a link
between heart disease and service and citing to the addiction
that began in service.
3. The veteran filed his current claim in March 2001.
CONCLUSIONS OF LAW
1. The evidence received since the May 1998 rating decision
is new and material, and the veteran's claims for service
connection for heart disease and shortness of breath due to
tobacco use in service and service connection for nicotine
addiction are reopened. 38 U.S.C.A. §§ 1110, 5108, 7105
(West 2002); 38 C.F.R. § 3.156 (2001); 38 C.F.R. §§ 3.303,
20.1103 (2003).
2. The veteran's claims for service connection for heart
disease and shortness of breath due to tobacco use in service
and service connection for nicotine addiction based on the
effects of tobacco products, filed after June 9, 1998, are
barred as a matter of law. 38 C.F.R. § 3.300 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran urges that he developed nicotine dependence, and
heart disease as a result of nicotine dependence, due to
smoking which began in service. He reported that he began
smoking during smoke breaks in basic training where everybody
was instructed that no one lights up a cigarette unless
everybody lights up. He obtained a pack of cigarettes and
practiced smoking in private so he would be accepted by the
group, and he has smoked since that time. He contends that
the addiction began in service and that it has lasted for
many years after service. His current heart disease and
history of heart attacks are, in his opinion, related to
service. He has provided a statement from his family
treating doctor which supports his theory that the type of
heart disease the veteran currently has, atherosclerotic
cardiovascular disease, can be etiologically related to his
smoking.
Prior to the current appeal, the veteran's claims for service
connection were denied by the RO in an unappealed rating
decision, dated in May 1998. The issue before the Board,
therefore, as to those two issues is whether the veteran has
submitted new and material evidence to reopen these claims.
In the January 2003 statement of the case, the RO did
indicate that the veteran had submitted new and material
evidence. It denied then the veteran's claims on the merits
following a de novo review of the record. The requirement of
submitting new and material evidence to reopen a claim is a
material legal issue the Board is required to address on
appeal despite the RO's action. Barnett v. Brown, 83 F.3d
1380, 1383-1384 (Fed. Cir. 1996). In light of the Board's
legal duty to determine whether the veteran has submitted new
and material evidence to reopen his previously denied claims,
the Board will address those issues initially, and thus the
issues have been phrased as noted on the title page.
VCAA
In November 2000, the President of the United States signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
Pub.L. No. 106-475, 114 Stat. 2096 (2000). This act
introduces several fundamental changes into the VA
adjudication process. In effect, this new legislation
eliminates the requirement under the old 38 U.S.C.A.
§ 5107(a) (West 1991) that a claimant must present a well-
grounded claim before the duty to assist is invoked.
Under the VCAA, VA's duty to notify and assist has been
significantly expanded in the following areas. First, VA has
a duty to provide an appropriate claim form, instructions for
completing it, and notice of information necessary to
complete the claim if it is incomplete. 38 U.S.C.A. § 5102
(West 2002); 38 C.F.R. § 3.159(b)(2) (2003). Second, VA has
a duty to notify the veteran of any information and evidence
needed to substantiate and complete a claim, and of what part
of that evidence is to be provided by the claimant and what
part VA will attempt to obtain for the claimant. 38 U.S.C.A.
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2002); See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2003). Third,
VA has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a),
5103A (West 2002); 38 C.F.R. § 3.159(c) (2003).
The Board finds no deficiencies with the duty to provide an
appropriate claim form and to inform or assist the veteran.
The RO sent the veteran an appropriate notification letter in
November 2001, prior to its initial adjudication of the
claim. The record also shows that the requirements of the
VCAA were set forth in a Statement of the Case (SOC) in
January 2003. It appears from the contentions and arguments
presented that he is fully aware of the relevant law and
evidence germane to his claims on appeal, and is aware, as
well, of the responsibilities that both he and VA share with
respect to the development of the claims. The VCAA-notice
contained in the November 2001 letter and SOC essentially
informed him what evidence and information VA had and what VA
would be obtaining and explained that VA would make
reasonable efforts to help him get evidence such as medical
records, but that he was responsible for providing sufficient
information to VA to identify the custodian of any records.
The SOC further informed the veteran of the provisions of the
VCAA and VA's duties. The veteran was also afforded an
opportunity to provide testimony before the RO in August
2002.
In view of the above, and from review of the evidence in the
claims file, there does not appear to be any additional
missing information or other evidence that has not been
accounted for in the RO's notification actions taken in
connection with the appellate development and review of this
appeal. Therefore, the Board finds that the Department's
duty to notify has been satisfied. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16
Vet. App. 370 (2002).
With respect to VA's duty to assist, all relevant records
have been identified and obtained. The Board finds that the
claims for service connection are substantially complete.
The duty to assist also includes, when appropriate, the duty
to conduct a medical examination of the claimant. In this
case, the RO did not provide the appellant with VA
compensation examinations because there is a bar to benefits
based on the date of application of this claim and thus,
there is no reasonable possibility that further examination
would be fruitful.
It is clear that the claimant has nothing further to submit
with regard to these two claims, and adjudication of his
claims can proceed. Further delay of the appellate review of
this case by the Board would serve no useful purpose.
Accordingly, the Board finds that additional efforts to
assist within the letter and spirit of the VCAA are not
required. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(strict adherence to requirements of law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran).
New and Material Evidence
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. §§ 3.303(a), 3.304 (2003).
In order to prevail on the issue of service connection for
any particular disability, there must be medical evidence of
a current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).
In addition, service connection for cardiovascular disease
may be established based upon a legal "presumption" by
showing that it manifested itself to a degree of 10 percent
or more within one year from the date of separation from
service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2002).
With regard to the heart disease and shortness of breath due
to tobacco use in service, as well as nicotine dependence,
the RO's 1998 decision is a final decision not subject to
revision on the same factual basis. 38 U.S.C.A. § 7105. In
order to reopen his claim, the veteran must present new and
material evidence with respect thereto. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a).
Evidence associated with the claim at that time included
available service medical records, negative for evidence of
actual heart disease, chronic shortness or breath, or
nicotine dependence in service. The service medical records
noted a history of smoking one to two packs per day in
service. It was noted that in the rating decision that the
veteran had not turned in the tobacco use questionnaire nor
had he provided evidence of current disease. Based on those
facts, the RO concluded in 1998 that there was no evidence of
a chronic condition of nicotine dependence or heart disease
or shortness of breath caused by tobacco use in service.
Thus, service connection was denied for these claims.
Evidence submitted since the denial in 1998 shows that the
veteran has a diagnosis of widespread atherosclerotic
cardiovascular disease including a past history of myocardial
infarction, intermittent claudication in the lower
extremities and calcification of the abdominal aorta with an
aneurysm. The medical doctor who made this notation was the
veteran's family practitioner, Karen Johnson, M.D. Dr.
Johnson's April 2001 letter also contains her observation
that the veteran started smoking in service in 1961. She
opines that there is a "proven correlation" between
cigarette smoking and increased risk of atherosclerotic
cardiovascular disease.
As previously stated the 1998 rating decision was final.
However, the veteran may reopen his claim by submitting new
and material evidence. 38 U.S.C.A. § 5108 (West 2002). New
and material evidence means evidence not previously submitted
to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363. For the purpose of establishing
whether new and material evidence has been submitted, the
credibility of the evidence, although not its weight, is to
be presumed. Justus v. Principi, 3 Vet. App. 510, 513
(1992).
Amendments to 38 C.F.R. § 3.156(a) relating to the definition
of new and material evidence apply to any claim to reopen a
finally decided claim received on or after August 29, 2001.
Therefore, the amendment is not applicable to the veteran's
claim, as he filed his claim in March 2001.
This evidence received since the 1998 decision includes an
opinion from a physician which indicates that the veteran
currently has heart disease which may be related to service.
The opinion that there is a proven correlation is clearly
offered in an attempt to make a suggestion of an etiological
connection between the current condition and service.
Further, the doctor affirms the veteran's history of
beginning smoking in service. The evidence was not
previously submitted to agency decision makers, it bears
directly and substantially upon the specific reason for the
prior denial, it is neither cumulative nor redundant, and is
so significant that it must be considered in order to fairly
decide the merits of the claims. See Hodge v. West, supra;
38 C.F.R. § 3.156. As such the Board finds that this
evidence is new and material and the claims are reopened.
Service connection claims
Service connection can be granted for a disability first
diagnosed after service when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). However, for
claims based on the effects of tobacco products filed after
June 9, 1998, disability or death will not be considered
service-connected on the basis that it resulted from injury
or disease attributable to the veteran's use of tobacco.
38 C.F.R. § 3.300 (2003). The veteran's claim was filed in
March 2001, so he is barred from being eligible for benefits
under the current application.
The veteran urges that he was in fact continuously
prosecuting his claim since the initial denial in May 1998.
The record, however, shows that following the notification of
the rating decision in May 1998, the veteran did not
communicate with VA regarding the tobacco-related claim until
March 2001. The notice in May 1998 was sent to the veteran's
most recent address of record and was not returned by the
postal service. Although his letter to reopen the claim
contained a completed tobacco product questionnaire which was
dated and signed by the veteran in January 1999, that
document is not found elsewhere in the record prior to March
2001. Thus, the Board finds that the veteran attempted to
reopen his claim in March 2001, and no earlier. The evidence
in the claims folder does not show an earlier application or
communication on these issues with VA following the May 1998
denial. Under such circumstances, the claim is denied.
ORDER
New and material evidence having been submitted, the claim
for service connection for heart disease and shortness of
breath due to tobacco use in service is reopened.
New and material evidence having been submitted, the claim
for service connection for nicotine dependence is reopened.
Service connection for heart disease and shortness of breath
due to tobacco use in service is denied.
Service connection for nicotine dependence is denied.
REMAND
The veteran urges that he developed nicotine dependence, and
heart disease as a result of nicotine dependence, due to
smoking which began in service. He urges that the RO
committed clear and unmistakable error (CUE) in its May 1998
decision denying service connection for heart disease due to
tobacco use and nicotine dependence. He claims the RO should
have obtained records that were constructively within its
control. Review of the record reflects that the RO, in its
March 2002 decision, denied both the service connection
claims and the CUE claim. The veteran's representative has
urged that the CUE claim be fully developed. A review of the
record discloses that the March 2002 rating decision did find
that there was no CUE in the May 1998 rating action. The
veteran's timely notice of disagreement was filed in April
2002. He offered testimony on this issue at his personal
hearing.
In view of the foregoing, the Board finds that the issue of
CUE has been placed in appellate status by the filing of a
Notice of Disagreement as to this issue. In Manlicon v.
West, 12 Vet. App. 238 (1999), the United States Court of
Appeals for Veterans Claims held that in these circumstances
where a Notice of Disagreement is filed, but a Statement of
the Case has not been issued, the Board must remand the claim
to the RO to direct that a Statement of the Case be issued.
See also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995);
Archbold v. Brown, 9 Vet. App. 124, 130 (1996). It is noted
that the veteran's representative pointed this matter out in
the Informal Brief on Appeal. Accordingly, this case is
REMANDED to the RO for the following actions:
The RO should provide the veteran a Statement
of the Case as to the issue of CUE in the May
1998 rating decision. In order for the
veteran to obtain appellate review of this
issue, he must follow the regulatory
provisions governing the submission of a
substantive appeal in order to perfect his
appeal. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. § 20.200, 20.202, 20.302(b) (2003).
The case should only be returned to the Board
following the issuance of the SOC if this
issue is perfected by the filing of a timely
substantive appeal. See Smallwood v. Brown,
10 Vet. App. 93, 97 (1997).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter that
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). The purposes of this
REMAND are to obtain additional information and comply with
due process considerations. No inference should be drawn
regarding the final disposition of this claim as a result of
this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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